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Opinion analysis: The Court strikes down the ACCA’s residual clause as vague. But is the real problem the “categorical” approach?

By the time the majority opinion was filed last Friday in Johnson v. United States, it was hardly a surprise that the Court struck down the “residual clause” of the federal Armed Career Criminal Act as unconstitutionally vague (as previewed here and here). While Justice Samuel Alito, in dissent, says that the majority is “transforming vagueness doctrine,” Justice Antonin Scalia writing for five Justices, and echoing Justice Oliver Wendell Holmes, says that “the life of the law is experience” — and the Court’s particular experience of applying the residual clause over the past decade is so uneven that only “guesswork and intuition” remain. Thus the statutory sentencing clause “fails to give ordinary people fair notice of the conduct it punishes, [and is] so standardless that it invites arbitrary enforcement.” It therefore violates traditional due process fairness concerns that underlie the Court’s twentieth-century vagueness doctrine.

Justice Clarence Thomas concurred only in the judgment, striking his own separate path as is often the case. His opinion presents a lengthy and interesting historical account that expresses his “concerns about our modern vagueness doctrine” because it “shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.” Justice Anthony Kennedy similarly concurred only in the judgment, agreeing in one paragraph with Justice Alito that the statute is not unconstitutionally vague and with Justice Thomas that under the residual clause as written, a conviction for possession of a short-barreled shotgun does not qualify as a “violent felony.”

Thus although forty-one pages of dissent outdistances the fifteen-page majority, the Court solidly invalidates the ACCA’s residual clause, and leaves it for lower courts to now sort out (1) whether and what defendants previously sentenced under the Clause may obtain relief, and (2) to which other statutory contexts the Court’s new constitutional vagueness ruling may extend.

Meanwhile, Justice Alito’s dissent effectively raises the question whether, instead of striking down the residual clause and overruling prior cases that upheld it, the Court should have “avoided” the constitutional question by instead abandoning the “categorical” approach to applying the ACCA that the Court adopted twenty-five years ago in Taylor v. United States. In response, Justice Scalia says only that “good reasons” underlay Taylor, and “the Government has not asked us to abandon the categorical approach in residual clause cases.” The irony in this brief rejoinder is that it comes in a case in which the Court ordered reargument sua sponte on a vagueness question that no party had asked the Court to address.

The path to the Court’s constitutional question

Recall that this case involved a federal “three strikes” statute, which subjects a defendant who is convicted as a felon in possession of weapons, to a fifteen-year mandatory minimum imprisonment sentence if he is found also to have three prior “serious drug” or “violent felony” convictions. A violent felony is defined as one that has an “element” of using physical force, or “is” burglary, arson, or extortion, or “involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” This last phrase (my emphasis) was undoubtedly intended to capture an undefined number of prior-conviction crimes found in varied state laws, and is known as “the residual clause.” It is this phrasing that the Court struck down as unconstitutionally vague on Friday.

Johnson, an unsympathetic white supremacist with a long criminal record, pled guilty to one count of unlawful weapons possession after he told undercover federal agents of plans to “assassinate” some “high priority targets” and was arrested in possession of a number of prohibited weapons and ammunition. At sentencing, the fifteen-year mandatory sentence was imposed based on Johnson’s prior state convictions for robbery, attempted robbery, and (the necessary third prior) possession of a short-barreled, or “sawed-off,” shotgun.

On appeal, the Eighth Circuit rejected Johnson’s claim that simple “possession” convictions can never have “a serious potential risk of physical injury to another,” and it concluded that possession of a shotgun that is “sawed off” (as opposed to a hunting shotgun of normal length) usually presents a potential risk of violence. Johnson brought a split among the circuits on this question to the Court, but he did not argue that the residual clause was unconstitutionally vague. Last November the Court heard oral argument, without any mention of possible unconstitutionality. But in January the Court reset the case for further argument in April, and directed the parties to brief the constitutional vagueness question.

Justice Scalia wins a long campaign

Without rehashing the long history of residual clause precedents, suffice it to say that in four prior cases the Court had struggled with applying the clause to various state-law convictions, and had expressed dissatisfaction both with choosing a “test” to use, as well as the results (did certain prior crimes qualify under the clause, or not?). In a 2007 dissent in James v. United States, Justice Scalia, joined by Justice Ruth Bader Ginsburg and then-Justice John Paul Stevens, suggested that the clause might be unconstitutionally vague. But Justice Alito, a former federal prosecutor and then new to the Court, rejected that suggestion for five Justices (with Justice Thomas striking a separate path even then).

In 2011, Justice Scalia again presented his unconstitutional vagueness view (in Sykes), and it was again rejected by a majority, although new Justice Elena Kagan now appeared to share Justice Scalia’s concerns (with Justice Ginsburg) and Justice Thomas again expressed separate discontent. Meanwhile, in yet a third case, Justice Breyer plainly struggled with the Court’s approach and put forth one of his own. But lower courts continued to struggle, express dissatisfaction, and reach disparate results regarding similar state crimes.  The uncomfortable reality appears to be that after Johnson was first argued back in November, a majority of Justices was ready to give up on the clause (and probably could not agree whether possession of a sawed-off shotgun does, or does not, usually involve violence). Or stated in a more principled manner, a majority was ready to conclude that because their own repeated efforts had failed to articulate a satisfactory interpretive standard, or provide lower courts with a standard that yields consistent results, the test for unconstitutional “vagueness” was fulfilled. Thus the case was set for reargument on the constitutional vagueness question.

The majority’s opinion in Johnson

Justice Scalia’s opinion for the Court is relatively short and simple. Significantly, Justice Scalia begins by noting that the Court ruled twenty-five years ago in Taylor v. United States that prior convictions under the ACCA must be evaluated using the “categorical approach.” Although the statute does not say it, this approach requires the court to determine what characterizes the commission of a prior-conviction crime in the “ordinary case,” as opposed to “how an individual offender might have committed it on a particular occasion.” This turns out to be “critical” in Justice Scalia’s words, because it gives rise to “a wide rang[e]” of “indeterminancy” in assessing both the “potential” for risk of injury, and “how much risk” a given prior conviction crime embodies. As an example (Justice Scalia asks), what is the potential risk in the “idealized ordinary case” of witness tampering? And how much risk is enough to fulfill the residual clause? The categorical approach prohibits the court from looking at what the individual defendant actually did on the facts of his specific prior conviction. Thus the judicial analysis (says the Court) inevitably becomes artificially “speculative,” leads to “unpredictability and arbitrariness,” is “uncertain” and “shapeless,” and descends to mere “guesswork and intuition” – below even the concededly low standard to which legislative enactments are usually held.

Although the Court plainly wants its ruling here to apply “for this train only,” the Court’s opinion seems to make a significant, broad doctrinal point: because early vagueness decisions (such as United States v. L. Cohen Grocery Co. (1921)) which involved “unjust or unreasonable rates”) struck down statutes even though clear cases of “unreasonable” rates could be imagined, Justice Scalia writes that the idea that a statute must be vague “in all its applications” must be rejected. (Thus the fact that some prior convictions, for example “attempted rape,” plainly involve a “serious potential risk of physical injury” as Justice Alito points out, makes no difference as to the residual clause’s general unconstitutional vagueness.) Justice Scalia discounts the Court’s prior “all applications” language as “a mere tautology.” But Justice Alito says this “flatly contravenes” precedent, including the holding of Hoffman Estates v. Flipside which the Court “does not even mention.” This doctrinal disagreement will certainly attract scholarly attention, and will have to be revisited by the Court in some future case(s). It is reminiscent of the “facial attack” disagreement among some of the Justices in City of Los Angeles v. Patel (decided an entire week ago!).

As for application of the Court’s decision to other statutes, Justice Scalia first says that the ACCA’s “categorical” approach separates the residual clause from “almost all” statutes that use similar language but apply it in an individualized way to a defendant’s actual conduct. However, the “almost” in this sentence is pregnant with undiscussed scope – and the Court does not specifically examine any other similar statute. In like vein, the Court says nothing about Teague retroactivity – can defendants whose fifteen-year minimum sentences were “final” before last Friday obtain relief, when the statute which mandated their sentence is (and apparently always was) unconstitutionally vague? Applications for such relief are undoubtedly already in the (e)mail to lower courts.

Finally, Justice Scalia explains (on another doctrinal point on which Justice Alito has previously disagreed) that “stare decisis does not matter for its own sake,” and that its values of “evenhanded, predictable and consistent development” of law would be “undermine[d]” by not overruling the unbriefed rejections of vagueness in the Court’s prior ACCA decisions. Whiz bang pop, and the Court’s four prior residual clause cases are overruled.

Does Justice Alito’s dissent open another argument?

“When one door closes, another opens” is attributed to Alexander Graham Bell. But it often has application to legal arguments. The Court’s opinion on Friday “critically” depends on the “categorical approach” adopted in Taylor. But Justice Alito correctly points out that this approach is not stated in the ACCA statute, and that Taylor did not involve the “residual clause.” Justice Alito reasonably asks why, under the doctrine of “constitutional avoidance,” the Court does not choose, instead, to interpret the residual clause as requiring evaluation of a defendant’s actual prior conviction conduct, as opposed to overruling four settled precedents.

Only Justices Scalia and Kennedy were on the Court when Taylor was decided — and significantly Justice Kennedy’s one-paragraph separate opinion on Friday said that he concurs in the Johnson judgment only “on the assumption that the categorical approach ought to still control.” Thus the assumption that the non-textual categorical approach is required seems open for some debate, not only for federal criminal litigants but also for Congress. The federal Sentencing Guidelines, of course, embody a “real-offense” sentencing philosophy, not a generalized “categorical” approach. This argument comes too late to save the residual clause, and only committed mandatory-minimum fans are likely to mourn the clause’s passing. But federal felons with violent prior convictions attract little sympathy, yet they receive a “windfall” from Friday’s decision (or more accurately, from the lazy legislative language). We will see if there is any further congressional will to fight on this somewhat obscure, but not unimportant, battlefield.

Recommended Citation: Rory Little, Opinion analysis: The Court strikes down the ACCA’s residual clause as vague. But is the real problem the “categorical” approach?, SCOTUSblog (Jun. 29, 2015, 10:55 AM),